Ripper, Maryte (In her Capacity as Administrator of the Estate of the Late David Theo Ripper) v Koorangi Pty Ltd

[1997] FCA 1392

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 3284 of 1997

BETWEEN:	MARYTE RIPPER (IN HER CAPACITY AS ADMINISTRATIX OF THE ESTATE OF THE LATE DAVID THEO RIPPER) Applicant
AND:	KOORANGI PTY LTD (ACN 004 345 279) Respondent

JUDGE:	RYAN J
DATE:	24 NOVEMBER 1997
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR:   There is before the Court a motion to stay an application instituted in this Court by Maryte Ripper, as Executrix of the Estate of David Theo Ripper for the winding-up of Koorangi Pty Ltd (“the company”).

There are also pending in the Supreme Court of Victoria proceedings instituted by Maryte Ripper, numbered 7956/96, against the company and Geoffrey Harold Ripper.  In those proceedings, the present applicant, Mrs Ripper, has alleged that her brother-in-law, Geoffrey Ripper, has been in breach of fiduciary and statutory duties as a director of the company Chief among those allegations is a claim that Mr Ripper caused disproportionate interest free loans to be made to himself and members of his family who thereby attracted a benefit which was not shared by other members of the company, principally David Ripper, who is the deceased husband of Mrs Ripper, and his father, who was a minority shareholder in the company.

The winding-up proceedings in this Court are brought pursuant to s 462 of the Corporations Law, and appear on the face of the affidavit in support, to raise similar issues to those raised in the Supreme Court proceedings.  I am not able, given the limited time that I have had to examine the material and reflect on this matter, to determine whether there is a precise identity of issues between the two proceedings, but it seems fair to conclude that there is a very substantial overlap between them. 

In those circumstances, as I have indicated in the course of discussion with counsel, I consider that it is a proper exercise of this Court’s discretion under the Jurisdiction of Courts(Cross-Vesting) Act 1987 to direct that the proceeding in this Court be transferred to the Supreme Court of Victoria. There is no suggestion that that Court lacks jurisdiction to entertain the application, and I consider that, as a result of the order which I propose to make, the Supreme Court will be in a position to exercise a wide range of discretions, including, if thought appropriate, a discretion to consolidate the two proceedings, to identify common or other issues for separate or preliminary resolution, and to take a number of other courses of both a procedural and a substantive kind which would mitigate the effects of the overlap to which I have referred.

Accordingly, I propose to make an order under the Jurisdiction of Courts (Cross-Vesting) Act, transferring to the Supreme Court the present proceedings numbered VG 3284/97 in this Court to the Supreme Court of Victoria, allowing that Court to give such directions as it considers appropriate about the incorporation of the pleadings in this Court in its own process, and to take such other course as it may consider appropriate in respect of the interlocutory steps which have been taken in this Court. Those steps, it appears to me, have not been very extensive.  The proceedings in this Court having only been instituted on 17 September 1997.

I shall reserve the costs of the proceedings in this Court, including the costs of the present motion and the costs of today, to the Supreme Court.  For the sake of clarity, I shall make the order which I have indicated, on today's motion, and that motion will be otherwise dismissed.  That form of order, presumably, will leave the parties free to make such further motion in the Supreme Court as they might be advised before the next directions hearing in that Court.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:            24 November 1997

Counsel for the Applicant:	Mr P Corbett
Solicitors for the Applicant:	Strongman and Crouch
Counsel for the Respondent:	Mr J Delany
Solicitors for the Respondent:	Deacons Graham & James
Date of Hearing:	24 November 1997
Date of Judgment:	24 November 1997